Report No. 54

Chapter 1K

Appeals-miscellaneous

Introductory

1K.1. The principal provisions as to first and second appeals have been already discussed. A few miscellaneous provisions as to appeals are contained in sections 101 to 112 in the body of the Code.1

1. See discussion as to sections 96 to 100, supra.

Section 102

1K.2. In the earlier Report1 on the Code, the Commission, after taking into account the recommendation in the 14th Report,2 recommended an increase of the amount mentioned in section 102 from Rs. 1,000 to Rs. 3,000.

1. 27the Report, note on section 102.

2. 14th Report, Vol. 1.

Recommendation

1K.3. We agree and recommend that section 102 should be revised as follows:-

"No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees."

Section 103

1K.4. In view of the change1 proposed in section 100, the last few words of section 103, which refer to the illegality, error etc., mentioned in section 100, require change. Further, it appears desirable to make it clear that section 103 applies also where the failure to decide a question occurred not only in the lower appellate court but also in the trial court.

1. See discussion as to section 91 and section 92.

Recommendation

1K.5. Accordingly, we recommend that section 103 should be revised as follows:-

"103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal-

(a) which has not been determined by the lower appellate court or by the court of first instance and the lower appellate court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100."

Section 104(fff) to be inserted to deal with order under sections 91-92, as proposed to be amended

1K.6. We have recommended separately1 that where the Court refuses leave to institute a suit of the nature referred to in section 91 or section 92 (as proposed to be amended), the order of refusal should be appealable. This necessitates an addition to the list of appealable orders as given in section 104.

1. See discussion as to section 91 and section 92.

Recommendation

1K.7. Accordingly, we recommend that the following clause should be inserted in section 104:-

"(fff) an order under section 91 or section 92, refusing leave to institute a suit of the nature referred to in section 91 or 92, as the case may be".

1K.8. Sections 109 and 110 of the Code deal with appeals to the Supreme Court. Since the subject is also dealt within Article 133 of the Constitution, we considered the question whether these sections should be retained.

1K.9. We have, after some discussion, come to the conclusion that since these provisions pertain to procedure, they should continue in the Code. It is appropriate that the Code should, as far as possible, be exhaustive on matters of procedure. We should, however, state1 here that these provisions should be brought into line with the recent amendment of Article 133 of the Constitution.2

1. Amendment not drafted.

2. Cf Constitution (30th Amendment) Bill.